# FILED
April 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE (HEARD AT KINGSPORT)

FOR PUBLICA

TION Filed: April 27, 1998

STATE OF TENNESSEE, ) ) APPELLEE, ) SEVIER CRIMINAL ) v. ) Hon. Rex Henry Ogle, Jud ge ) BARBARA BYRD, ) No. 03S01-9705-CR-00057 ) APPELLANT. )

FOR APPELLANT : FOR APPELLEE : EDWARD C. MILLER JOHN KNOX WALKUP PUBLIC DEFENDER ATTORNEY GENERAL AND REPORTER DANDRIDGE MICHAEL J . FAHEY II ASSISTANT ATTORNEY GENERAL NASHVILLE



# O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED HOLDER, J.1 Oral argument was heard i n this case on November 21, 1997, in Ki ngsport, Sul livan Coun ty, Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L egal E ducation for S tudents ) project. 2 OPINION
We granted this appeal to address the val idity of an indictment that aggregates, under Tenn. C ode Ann. § 39-14-103, the value of stolen property belonging to different owners. 1 We hold that aggregation of value is permissible under § 39-14-103 when a defendant si multaneously exercis es possession or control over stolen property belonging to different owners.

BACKGROUND

This case involves the theft of $ 2,644.92 in merchandise taken fro m nine separate merchants located in the Pigeon Forge area. The def endant, Barbara Ann Byrd, and three other individuals, Robbie Poole, Janie Carlton and Richard Devon Ewing, embark

ed on a journey to Pigeon Forge during whi ch they planned to systematically steal merchandise from vari ous stores. The four traveled to Pigeon For

ge in a gray 1976 Ol dsmobile Delta 88 that belong ed to Ewing's father. Poole t estified that he, the defendant, Carlto n and Ewing had devised a scheme for stealing merchandise. Once they enter ed a store, two of the four would distract the sales staff while the other two placed merchand ise into a shopping bag. They would leave the stor

e without paying for the merchandise. The stolen merchandis e was then placed into the t runk of the Delta 88. The foursome implemented this strategy at nine different stores.
The authorities apprehended the fo ursome and recovered $ 2,644.92 in stolen merchandise from the Delta 88. The defendant was indicted and subsequently convi cted for theft of property over $ 1,000.00. She raised sever al2 The ind ictmen t read, in pe rtinent part: [The defendant]did unlawf ully , feloniously and knowi ngly obt ain or exercise control ov

er the fol lowing pr

operty:One (1) purse, the property of Banner House, Inc.; cologne and other pr operty,owned by Prestige Fragrance; Two watches, owned by Swan k; Clothe s, owne d by J. Cre w, Inc.; clothe s owne d by the Clo set, Inc.; one (1) Jacket, the property of Woolrich Factory

Outlet, Inc.; miscel laneous property, ow ned by C hristm as & G ifts, Inc.; clothe s owne d by Galt S ands, Inc .; Blankets, owned by

the Gift Gallery , Inc.,in all the aforesai d property having an aggregate val ue in excess of $ 1, 000.00, t he said defendant having obtained or exercis ed con trol over the property w ithout the ef fective co nsent o f the prop erty owner, a nd with the intent to dep rive the afo resaid ow ner of the ir property, . . .
3 The fo llowing cas es have addres sed sim ilar issues u nder the prior statuto ry schem e: State v. Goins , 705 S.W .2d 648 (Tenn. 1986) (interpreting Tenn. C ode Ann. § 39-3-1112 ); W illiams v. Sta te , 390 S.W .2d 234 ( Tenn . 1956) (a ddress ing Ten n. Code Ann. § 39 -4217); Nelson v. Gann , 344 S.W.2d 540 (Tenn. 1960) (deciding embezzlement issue under Tenn. Code Ann. § 39-42 28); State v. O'G uin , 641 S.W.2d 894 (Tenn. Cr. App.1982) (concerni ng Tenn. Code Ann. § 39-42 24); Shell v. State , 584 S.W.2d 231 (Tenn. Crim. App. 1979) (aggregat ing under Tenn. Code Ann. § 39-4225). While these cases are i nstructive, they are not bi nding on the n arrow issue of wheth er the in dictment now befor e us improperly

aggregated t hefts under Tenn. Code Ann. § 39-13-103 (Re pl. 1991). 3 issues on appeal to the Court of Criminal Appeals. In one is sue, she challenged the indictment as duplicitous and argued that she should hav e been charged with nine separate offenses because the stolen property was taken from nine different owners. 2 The Court of Criminal Appeals held that the prosecutor acted properly within his discretion in char ging one count of theft over $ 1,000.00 under Tenn. Code Ann. § 39-14-103. We agree.

ANAL YSIS
The defendant raises a single nar row issue before this C ourt: "Whether the trial court erred i n failing to dismiss the i ndictment due to the fact that numerous separate counts of theft wer e aggregated in a sin gle count of an indictment?" Since the 1989 Cri minal Reform Act revisi ons and codification of Tenn. Code Ann. § 39-14-103, this C ourt has not addressed the v iability of indictme nts aggrega ting the va lue of st olen prop erty. 3
Aggregation of separate thefts is generally per missible where separat e larcenous acts are: (1) from the same owner[s]; (2) from the same location; and4 (3) pursuant to a continui ng criminal impulse or a single sustained lar

cenous scheme. See generally , Nelson v. State , 344 S.W.2d 540 (Tenn. 1960) (aggregating sep

arate thefts from a trade union over a period of time pursuant to a general larcenous scheme)

. See also People v. Fayette , 657 N.Y.S.2d 827, 829 (N.Y. 1997) (finding aggregation permiss ible where separate thefts a re from same owner and same location i f pursuant to a sustained crimi nal scheme). In the case now before us, the stol en property belonged to di fferent owners. Accordingly, the i ssue with which w e are now confronted requi res us to examine the validity of an indi ctment for theft of property that ag gregates the value of stolen property belonging to different owners.
In 1989, the legislature el iminated the antiquated and confusing distinctions among var ious larceny-relate

d crimes by opting for a single theft of property statute that embodies separate theft-related offenses. See Tenn. Code Ann. § 39-14-101 (stating c urrent theft statute "embraces . . . embezzlement, false pretense, fraudulent conver sion, larceny, recei

ving/concealing s

tolen property, and other similar offenses"). The current the ft of property statute is codified at Tenn. Code Ann. § 39-14-103 and provides:
A person commits theft of property if, with intent to depri

ve the owner of property, the per son knowingly obtains or exercises control over the proper ty without the own er's effective consent.
Tenn. Code Ann. § 39-14-103 (1991 Repl .). Accordingly,theft of property may be accomplished in one of two manner s: (1) taking or obt

aining property w

ithout consent and with an intent t o deprive; or (2) ex

ercising control ov

er property without consent and with the intent to deprive.5 Following our decision in State v. Goins , 705 S.W.2d 648 (Te nn. 1986), it would be illogical

to prohibit the State from agg regating values of st olen property under § 39-14-103 in all cas es. In Goins , the defendant was charged w ith receiving and conceal ing stolen property.The evidence revealed th at the property belonged to three different owners. The State indicte d and the jury convicted the defendant on three co unts of receiving and conc ealing stolen property. This Court, however, dismissed two of the three counts on double jeopardy principles due to the absence of clear proof supp orting the State's theory that the stolen prope rty from the three vic tims was received in separate transactions.
In cases factually simil ar to Goins , it defies logic to prohi bit aggregation of amounts taken from different victims when the State is already prohibited by Goins from charging separate cr imes. Such a holding potenti ally provides criminals a "free theft" or a ser ies of "free thefts."

One who exercises c

ontrol over property

exceeding $ 1,000.00 in v alue but less than $ 10,000 in value without consent and with the intent to deprive is guilty of a Class D felony. Tenn. Code Ann. § 39-14-105 (1991 Repl.). The Code's felony theft-grading subsection neither prohibi ts aggregation, req uires that stolen a rticles c

ontributing

to the aggr

egated val ue be taken fro m the same owner, nor mandates that the s tolen property be recei

ved from a third party. Accordingly, w

e find that the value of stolen property may be aggr egated under Tenn. Code Ann. § 39-14-103 when a defendant exercises simultaneous possession or control over stolen property belonging to different owners.

In the case now before us, the defendant was in an automobile that contained in excess of $ 2,500.00 in stolen property. The ev idence indicated6 that she had simultaneous access to or control over the property without consent . The evid ence fu rther ind icated th at the de fendan t intend ed to dep rive the individual owners of the property. Accordingly, the prosecutor acted within his discretion and had probabl e cause to indict the defendant for theft ov er $ 1,000.00. See State v. Gilliam , 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995) (stating district attorneys have broad di scretion in determining what crime to charge). We find that the indictm ent was facially valid. Costs of this appeal shall be taxed against the defendant, Barbara Byrd, for which execution may issue if
necessa ry.

JANICE M. HOLDER, JUSTICE

PANEL Anderson, C.J. Reid, Drowota, J.J. Birch, J. Not Partici pating